State v. Martin

MEYER, Justice

(dissenting).

I respectfully dissent from the majority’s conclusion that Lennell Martin waived *627his right to be present for some jury communications, and its affirmance of Martin’s conviction. I would hold that the facts and law do not support a determination that Martin knowingly, intelligently, and voluntarily relinquished his right to be present, and that the failure of the trial court to make a record of communications with the deliberating jury should result in reversal and remand for a new trial.

The Sixth Amendment Confrontation Clause and the Due Process Clause of the Fourteenth Amendment provide the basis for a criminal defendant’s right to be present at trial. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). “Through the Confrontation Clause, the Sixth Amendment to the United States Constitution grants a defendant the right to be present at all stages of trial.” State v. Sessions, 621 N.W.2d 751, 755 (Minn.2001) (citing Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)). Minnesota’s criminal rules state that the defendant shall be present “at every stage of the trial.” Minn. R.Crim. P. 26.03, subd. 1. This court has held that the right to be present is broader under Rule 26.03 than under the Confrontation Clause. State v. Thompson, 430 N.W.2d 151, 152-53 (Minn.1988).

Responding to a deliberating jury’s question is a stage of trial, requiring the defendant’s presence. Sessions, 621 N.W.2d at 755. Moreover, the rules explicitly require the defendant’s presence if the jury makes a request to review testimony or other evidence or asks to be informed on any point of law. Minn. R.Crim. P. 26.03, subds. 1, 19(2), (3). The jury must be brought into open court, and the prosecutor and defense counsel must be notified. Id., subd. 19(2), (3). We have clearly articulated the reason for requiring the defendant’s presence:

Our focus is not on the inconvenience of calling necessary personnel into open court, but on the public interest. “The public interest requires that parties to lawsuits or defendants on trial should have nothing to complain of or suspect in the administration of justice.” Where the rules explicitly require proceedings in open court, and, without defendant’s consent, those proceedings are not conducted there, the defendant and society generally lose confidence in the integrity of the proceeding.

Sessions, 621 N.W.2d at 756 (quoting State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955)).

A failure to respond to a jury communication on a point of law or an evidentiary issue in open court with counsel and the defendant present is a violation of the defendant’s constitutional right to be present and a violation of our rules of criminal procedure. Id. at 753 (“We hold that the trial court erred by engaging in substantive communications with a deliberating jury outside of open court, without the appellant’s knowledge, consent or presence, and without the presence of appellant’s counsel and the prosecutor.”). In this case, the majority apparently concludes that Martin’s constitutional right to be present would have been violated but for the fact that he “waived by his silence” his right to be present during a critical stage of the trial. I would conclude that there was no effective waiver. Martin did not knowingly, intelligently, and voluntarily waive his right to be present during jury communications.

I turn first to the substance of the so-called waiver granted by Martin. After the jury began its deliberations, the judge initiated a discussion with the parties’ attorneys, in Martin’s presence. The purpose of the discussion was to get an agreement from the attorneys that the judge *628need not contact the attorneys with every single question initiated by the jury during deliberations.1 After some discussion, the court obtained an agreement from the attorneys that the judge would generally be allowed to communicate with the jury without Martin present unless the judge received a question of “real substance.”2 The judge then asked, “Is that okay with everybody?” Counsel for Martin replied, “Fine with me, Judge.” Martin was not asked if he understood the nature of the agreement or if he understood that he was waiving an important constitutional right; he simply was present in the courtroom and silent. The majority concludes that because Martin failed to object to the agreement, he acquiesced in it and thereby waived his constitutional right to be present.

The majority’s conclusion runs contrary to the general principle that constitutional rights must be waived knowingly, intelligently, and voluntarily, see Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (describing waiver of federally protected constitutional rights), and our specific statement that waiver of the right to be present at a critical stage of trial must be competent and intelligent, State v. Worthy, 583 N.W.2d 270, 277 (Minn.1998) (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Again, the right to be present is rooted in the Confrontation Clause, as well as the Due Process Clause, and the U.S. Supreme Court has stated that courts “cannot presume a waiver of * * * important federal rights [including the right to confront one’s accusers] from a silent record.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The majority’s conclusion is also in direct conflict with our holding in State v. Ware, 498 N.W.2d 454 (Minn.1993). In Ware, the trial court proceeded with a critical stage of trial (polling of the jury *629after it had returned a verdict) without the defendant present and without the defendant’s explicit waiver of his right to be present. Id. at 457. We concluded that

a trial court ought not proceed with the return of the verdict, including the polling of the jury, in the absence of the defendant unless the defendant has waived the right to be present. Moreover, this decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.

Id. The rule is that “[ajlthough [the defendant] could have waived the right to be present, and his counsel purported to do so, we have held that a waiver by counsel is ineffective unless it is made with the informed consent of the defendant.” Browm v. State, 682 N.W.2d 162, 166 (Minn.2004) (citing Sessions, 621 N.W.2d at 756, and Ware, 498 N.W.2d at 457). In this case, the record is silent about whether Martin consulted with his counsel about waiving his presence or whether he was given the opportunity to make a personal decision about such a waiver. Importantly, his personal waiver of his right to be present is not on the record.

In Ware we made it clear that a decision to waive the right to be present at a critical stage of trial is a “personal decision.” 498 N.W.2d at 457. The same conditions for an effective waiver of this personal right should be required as those that are required for other personal constitutional rights. “When it comes to the waiver of at least two fundamental rights, the right to a jury trial and the right to counsel, our law is clear that these rights cannot be waived by silence.” State v. Osborne, 715 N.W.2d 486, 442 (Minn.2006).3 Those requirements include a personal waiver upon the record in open court, after being advised by the court of the right to be present and after having an opportunity to consult -with counsel. “Where the rules explicitly require proceedings in open court, and, without defendant’s consent, those proceedings are not conducted there, the defendant and society generally lose confidence in the integrity of the proceeding.” Sessions, 621 N.W.2d at 756. I would conclude that Martin did not waive his right to be.present in the courtroom for jury questions.

The four communications concerned substantive matters

I turn next to the question of whether any of the communications related to housekeeping matters. A judge is permitted to communicate ex parte with a jury relative to housekeeping matters but not with respect to substantive matters. See State v. Greer, 635 N.W.2d 82, 93 n. 3 (Minn.2001). Substantive matters relate to “any aspect of the case itself’ and housekeeping matters relate to “ ‘physical comforts and the like.’ ” Ford, 690 N.W.2d at 712-13 (quoting State v. Kelley, 517 N.W.2d 905, 908 (Minn.1994)). We permit a judge to communicate with a jury regarding housekeeping matters without the defendant present because Rule 26.03 “is designed to protect defendants’ Sixth and Fourteenth Amendment rights” and “routine housekeeping matters do not fall within its embrace.” Ford, 690 N.W.2d at 713. Further, “any doubt regarding whether a communication relates to a housekeeping or substantive matter should *630be resolved in favor of defendant’s presence” and “a record should be made of all communication between the judge and the jury, regardless of its substance.” Id. Finally, previous decisions of this court have analyzed communications relating to jury instructions and evidentiary matters as violations of the defendant’s right to be present. See, e.g., Mckenzie v. State, 687 N.W.2d 902, 905-06 (Minn.2004); Sessions, 621 N.W.2d at 755-57; State v. Hudspeth, 535 N.W.2d 292, 295 (Minn.1995); State v. Kindem, 338 N.W.2d 9, 16-17 (Minn.1983).

When we remanded this case for a complete record, we did so because we did not know whether four communications related to housekeeping matters or substantive matters. State v. Martin, 695 N.W.2d 578, 587 (Minn.2005). On remand, notes were discovered indicating that one communication was a jury request for a dictionary, and another was a request for the legal rule on “rash impulse.” No notes were discovered for the other two disputed communications. An evidentiary hearing was held, but the trial court did not recollect the substance of either of the two communications for which no notes were found; the bailiff recalled that one of the notes pertained to the time the jury would go to a hotel if deliberations were not completed. A fifth communication was discovered on remand: the jury requested a VCR during deliberations and the court granted the request.

A second remand was ordered by this court “for a Schwartz hearing to determine the nature of the communications between the jury and the trial judge” regarding the two undocumented communications. At the Schwartz hearing the twelve jurors from Martin’s trial each testified but they did not recall the nature of the two disputed communications.4 In sum, I would conclude, based on what we have learned from the two remands, that none of the four disputed communications relate to housekeeping matters; two of the communications clearly concerned substantive matters and the other two remain a mystery.

The request for the dictionary did not pertain to a matter of the jury’s comfort, and instead likely related to a definition at play in the deliberations (in light of the jury’s request for a legal definition of “rash impulse” shortly after the dictionary request). Given the presumption in Ford and the likelihood that the dictionary communication related to a point of law in the jury’s deliberation, it cannot be described as a housekeeping matter.

The rash impulse communication, likewise, related to language in the jury instructions. The applicable rules and this court’s case law on the matter indicate that such questions are clearly not housekeeping matters. See, e.g., Sessions, 621 N.W.2d at 755 (analyzing communication relating to proof beyond a reasonable doubt).

With regard to the two undocumented communications of October 28, the trial judge had no recollection of these communications and presumed that the communications “fell within the agreement” and did not concern matters of “real substance.” Unfortunately, the trial judge’s definition of matters that were not of “real substance” encompassed questions about the jury instructions. Such communications, we have held, are forbidden. As we said in Sessions, a trial court errs “by engaging in substantive communications with a de*631liberating jury outside of open court, without the appellant’s knowledge, consent or presence, and without the presence of appellant’s counsel and the prosecutor.” Id. at 757.

The trial court’s determination that the VCR request, dictionary request, and rash impulse question were not substantive should leave this court with considerable doubt about the nature of the undocumented communications — I cannot conclude on the record we have before us that these communications did not concern matters of substance. The rapidity with which the court answered the two questions for which notes were not found cannot be relied on, as the state suggests, to indicate that the questions related to housekeeping matters since the dictionary question was answered in three minutes and the rash impulse question was answered in two minutes. The presumption in Ford again argues in favor of this court assuming the communications related to matters that were not housekeeping, finding error on the part of the trial court. Having concluded that the trial court erred in communicating with the jury on four separate occasions on matters of substance, I would proceed with harmless error analysis.

Harmless error analysis

When a trial court wrongfully denies a defendant’s right to be present for a jury communication, this court analyzes the error to determine if its impact was harmless beyond a reasonable doubt; that is, that the verdict was surely unattributable to the error. Sessions, 621 N.W.2d at 756 (citing State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). To determine whether such an error was harmless (i.e., not prejudicial), this court assesses the strength of the evidence and the substance of the judge’s response. Id.; see also Kindem, 338 N.W.2d at 16-17.

Regarding the strength of the case against Martin, the evidence introduced by the state included an eyewitness who identified Martin as the gunman, a neighbor who testified to seeing a car matching the description of Martin’s outside the crime scene, directions to the home of Anthony (the victim) discovered in the car of Martin’s accomplice, blood matching the victim’s DNA discovered in Martin’s car, testimony describing a history of Martin and his accomplice coming to the aid of a cousin who had a complex and troubled relationship with Anthony that had flared up the day before the murder and, finally, Anthony’s dying declaration that Martin was one of his assailants. Martin, 695 N.W.2d at 581-82. .

Martin asserts that the state never provided a motive for Martin to murder the victim and, relevant to the premeditation element of the charge against Martin, that the eyewitness did not testify that Martin threatened to shoot Anthony and that the single, fatal shot was fired when a neighbor (responding to the sounds of a struggle) knocked on the door to the apartment where the assault took place. I would characterize the state’s case for premeditated murder as strong, but not overwhelming.

Regarding the second analytical step, the judge’s answer, the impropriety of allowing a jury to have material not in evidence, is self-evident. As such, this court could conclude that the court’s summary disapproval was neutral and nonsubstan-tive and could not have played a significant role in the verdict. See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn.1995) (finding a communication outside of the defendant’s presence did not warrant a new trial because the judge’s answer was neutral and nonsubstantive).

The jury’s request for a dictionary and a request four minutes later for a definition *632of rash impulse may have been related. The trial court acknowledged the same. By not notifying the attorneys of these questions Martin was potentially harmed because he was denied the right to assist in formulating responses to the jury’s questions. In this case, a reasonable jury could have found that the death of the victim was the result of rash impulse rather than premeditation where the state did not provide a motive, there was no evidence of threats against the victim, and the single, fatal shot was fired when a neighbor knocked on the apartment door.

This case would be a close call if we were only concerned with these two communications. I believe this close call tips in favor of Martin because of the two undocumented communications and the presumption of irregularity that must apply to them. This court does not know the substance of the undocumented communications and the judge’s response to them. As such, we cannot answer the question of whether the judge’s response was sufficient to call the error in communication a harmless one.

In this case the trial court failed to make a contemporaneous record of all communications with the jury where we have made clear that such a record should be made, the trial court communicated with the jury about matters of substance where the rule is clear that no communication is to be had with the jury during deliberations without first notifying counsel and defendant, and the trial court communicated with the jury about matters that cannot be effectively reviewed on appeal. The majority would place the burden on Martin to “come forward with evidence ‘suggesting’ that there was ‘improper influence’ ” in these communications, citing to a “rule” announced in the Erickson case that a presumption of regularity attaches if a defendant cannot come forward with such evidence.

I believe the majority misapplies Erickson to the facts of this case. In Erickson, over defense counsel’s objection, the jury was allowed to separate overnight during its deliberations. State v. Erickson, 597 N.W.2d 897, 902 (Minn.1999). The Erickson court held that (1) the trial court erred in separating the jury because it violated Minnesota Rule of Criminal Procedure 26.03, subd. 5(1), and (2) the defendant did not sustain his burden to present evidence of pervasive publicity or other inappropriate outside influences on the jury. Erickson, 597 N.W.2d at 902. In other words, it was the duty of the defendant to provide an initial showing that impermissible communications occurred. In this case, the defendant has sufficiently sustained his burden to show that impermissible communications occurred. But it was the duty of the trial court judge to document the substance of the communications and it was the judge’s failure to make a record that prevented the defendant from assuming his burden to show prejudice. I strongly disagree with the notion that we will place the burden on a defendant to reconstruct a record for appellate review when he was denied his right to be present in the courtroom.

Under the facts of this case, a presumption of regularity does not attach, and I would not require Martin to bear the burden of supplying a record of communications from which he was unconstitutionally barred. Other appellate courts have similarly not placed the burden on the defendant to prove harmlessness where the record is incomplete. State v. Corrales, 121 Ariz. 104, 588 P.2d 846, 847 (1978) (reversing a conviction because an incomplete record precluded the court from finding that jury communications were harmless); Coley v. State, 431 So.2d 194, 196 (Fla.Dist.Ct.App.1983) (granting a new trial where content of jury question could not be de*633termined); see also Tarry v. State, 289 Ark. 193, 710 S.W.2d 202, 205 (1986) (reversing Tarry’s conviction, in light of burden on state to prove no prejudice where the record did not show what was said when judge went to the jury room to answer a substantive question).

In conclusion, Martin did not personally waive his right to be present for communications with the jury, as required by State v. Ware. The trial court engaged in off-the-record communications with a deliberating jury about matters of substance. Two of these communications concerned substantive matters, and the failure to notify Martin and his counsel may have prejudiced Martin’s rights. The other communications cannot be substantively and effectively reviewed on appeal because no record could be reconstructed. On these facts, the state cannot prove beyond a reasonable doubt that the errors were harmless and, therefore, I would reverse and remand for a new trial.

. I am troubled by the trial court's preempto-ry effort to avoid having to call counsel and the defendant into open court to consider questions from the jury. This is a significant deviation from the rules of criminal procedure and this court should not acquiesce in this practice. See State v. Rean, 421 N.W.2d 303, 306 (Minn.1988) (indicating that district courts cannot follow a blanket rule in denying requests to review testimony by a jury); see also State v. Spaulding, 296 N.W.2d 870, 878 (Minn.1980) (reversing and remanding for a new trial where the trial court refused to exercise its discretion by determining at the outset of deliberations that it would deny any jury requests to review trial transcript). To allow otherwise seriously undermines the rules for conduct of a trial and wrongly broadens the scope of the trial court’s discretion. We would never, for example, allow a court to secure, at the outset of trial, the parties' consent to forgo the hearsay rule. I find it particularly troubling that it was the trial court’s “usual practice” to employ advance agreements regarding jury communications — especially since Martin was on trial for first-degree murder.

My concerns are heightened by other circumstances surrounding the jury communications. First, the trial court failed to collect the notes sent from the deliberating jury and make them part of the court file. Only after the first remand did the court discover some of the notes, and include them in the court file. The bailiff had no explanation for the absence of some notes that would have documented the communications. Second, there is an indication in the record on remand that the judge was absent from the courthouse while the jury was deliberating and that the judge provided responses to at least some of the jury questions over the phone through the bailiff.

. As discussed below, the terms of this agreement run contrary to well-settled law in Minnesota that a judge is absolutely prohibited from communicating with a deliberating jury outside of the defendant’s presence. The only exceptions we have permitted are if the communication relates to mere pleasantries or issues of jury comfort.

. The majority notes that Rule 26.03, subd. 1(1), mandating the defendant’s presence at trial, contains no requirement for explicit on-the-record waivers. However, the rule does describe two situations where the trial may proceed without the defendant present: when the defendant absents himself without justification and when the defendant is excluded because of disruptive conduct. The rule does not permit a defendant to be absent from trial on the basis of waiver.

. It is not surprising that the jury members had little to no recollection of the questions given the length of time that had passed since they had served: the jury rendered its verdict on October 29, 2003, and the Schwartz hearing was conducted nearly two and one-half years later on March 30, 2006.